Citation Nr: 0100901
Decision Date: 01/12/01 Archive Date: 01/17/01
DOCKET NO. 99-20 441 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for major depression.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K.Y. McLeod, Associate Counsel
INTRODUCTION
The veteran had active service in the United States Army from
July 1980 to September 1980.
This matter is on appeal to the Board of Veterans' Appeals
(the Board) from a December 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Houston, Texas (the RO) which denied the veteran's claim of
entitlement to service connection for major depression. The
veteran filed a timely notice of disagreement in April 1999.
See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200,
20.201, 20.302 (2000). The RO subsequently provided the
veteran a statement of the case and notification of his
appellate rights. See 38 U.S.C.A. § 7105 (West 1991);
38 C.F.R. §§ 19.28, 19.29(b), 19.30, 20.302 (2000).
The veteran's perfected appeal of the RO's decision to the
Board and request for a hearing at a local VA office before a
member of the Board were received in October 1999. In
November 1999 the RO offered the veteran an opportunity to
conduct his hearing via video conferencing; he accepted in
January 2000. The veteran was notified in July 2000 that his
hearing had been scheduled for August 8, 2000 at the RO in
Houston, Texas. He was also advised as to the rescheduling
procedures and consequences of failing to appear at the
hearing. See 38 U.S.C.A. §§ 7102, 7105(a), 7105A, 7107 (West
2000); 38 C.F.R. §§ 200.700, 20.704 (2000). The Board notes
that on August 8, 2000, the veteran failed to appear for his
hearing.
REMAND
Service connection may be established for a disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1131
(West 1991); 38 C.F.R. § 3.303 (2000). The veteran claims
entitlement to service connection for major depression, which
he argues first manifested during active service.
Service medical records indicate that the veteran attempted
suicide in August 1980 after returning from leave. Later
that month, a mental status evaluation was conducted during
which the veteran allegedly reported that his suicidal
gesture was a manipulative attempt to get out of the service.
The mental status evaluation revealed neither evidence of any
primary psychiatric disorder, psychosis, delusions,
illusions, nor other perceptual disorders. The veteran was
cleared psychiatrically by the evaluating behavioral science
specialist. In September 1980, the veteran was honorably
discharged pursuant to the Trainee Discharge Program for
marginal or non-productive performance.
In 1982 the veteran was incarcerated at the Texas Department
of Criminal Justice (TDCJ). According to 1996 medical
records from TDCJ, the veteran reported suffering from
depression during a period of incarceration from 1982 to
1983. The VA claims folder contains no medical records from
that period of incarceration.
TDCJ medical records from March 1996 to February 1998 contain
a variety of notes regarding and diagnoses of the veteran's
condition. In March 1996 the veteran was diagnosed with
major depressive disorder, recurrent with mood-congruent
psychotic features and polysubstance dependence. Other
records from 1996 indicate the veteran reported a thirteen-
year history of depression and cocaine abuse and a family
history of bi-polar disorder. That year mental health
professionals at TDCJ diagnosed the veteran with adjustment
disorder with depressed mood associated with his
incarceration. Medical records from April to October 1997
indicate that the veteran had no objective signs of
depression and that he was exaggerating or feigning his
symptoms. Clinical notes dated February 1998 indicate no
Axis I diagnosis upon discharge.
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law eliminates the concept of a well-grounded
claim, redefines VA obligations with respect to the duty to
assist, and supercedes the decision of the United States
Court of Appeals for Veterans Claims (Court) in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam
order), which had held that VA cannot assist in the
development of a claim that is not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the Veterans Claims Assistance
Act of 2000, or filed before the date of enactment and not
yet final as of that date. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096,
___ (2000). See also Karnas v. Derwinski, 1 Vet. App. 308
(1991).
The law further provides that the assistance provided by the
Secretary shall include providing a medical examination or
obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim. An
examination is deemed "necessary" if the evidence of record
(lay or medical) includes competent evidence that the
claimant has a current disability, or persistent or recurrent
symptoms of disability; and indicates that the disability or
symptoms may be associated with the claimant's active
military, naval, or air service; but does not contain
sufficient medical evidence for the Secretary to make a
decision on the claim. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, __ (2000)
(to be codified at 38 U.S.C.A. § 5103A).
The medical evidence in this case is inconclusive as to the
veteran's claim of major depression and whether his
psychiatric disability, if any, is service-connected. The
medical records indicate conflicting diagnoses. There are no
TDCJ medical records during the veteran's period of
incarceration from 1982 to 1983. Additionally, there is no
psychiatric evaluation by a VA mental health professional.
VA's duty to assist includes the undertaking of reasonable
efforts to provide the veteran with a compensation
examination to determine the nature and etiology of any
existing psychiatric disability. Such an examination would
be subject to the limitations imposed by his incarcerated
status pursuant to Bolton v. Brown, 8 Vet. App. 185 (1995).
While VA does not have the authority under 38 U.S.C.A. § 5711
(West 1991) to require a correctional institution to release
a veteran so that VA can provide him the necessary
examination at the closest VA medical facility, VA's duty to
assist an incarcerated veteran extends to arranging for
adequate psychiatric evaluation within the prison facility,
or if unable to do so, having him examined by a fee-basis
physician or requiring a VA physician to examine him. See
Bolton, 8 Vet. App. at 191.
The Board recognizes that although the veteran requested a
videoconference hearing, he failed to appear, as noted above.
Although the Board is cognizant of the veteran's
circumstances, he is reminded that it is ultimately his
responsibility to ensure his appearance at any scheduled
hearing unless he submits a request for postponement or
waiver for good cause. See 38 U.S.C.A. § 7107 (West 1991),
38 C.F.R. § 20.704 (2000).
Accordingly, the matter on appeal is remanded for the
following actions:
1. The RO must review the veteran's
claims file and ensure that all
notification and development action
required by the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475 is
completed. In particular, the RO should
ensure that the new notification
requirements and development procedures
contained in sections 3 and 4 of the Act
[to be codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107] are fully
complied with and satisfied. For further
guidance on the processing of this case in
light of the changes in the law, the RO
should refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance that
is subsequently provided by VA, including,
among other things, final regulations and
General Counsel precedent opinions. Any
binding and pertinent court decisions that
are subsequently issued also should be
considered.
2. The RO should contact the veteran and
obtain the names and addresses of all
medical care providers who treated the
veteran for depression since in or around
September 1980. After securing any
necessary release, the RO should obtain
those records that have not previously
been associated with the veteran's VA
claims folder. The RO should notify the
veteran if identified records are
unavailable.
3. The RO should attempt to arrange for
psychiatric evaluation of the veteran by
the TDCJ, if possible, to determine if
the veteran currently has major
depression or other psychiatric disorder
and, if so, whether such is at least as
likely as not to be related to his
service in 1980. Otherwise, the RO shall
arrange for a VA examiner, or fee-basis
examiner, if necessary, to conduct the
examination. The veteran's claims folder
must be made available to the examiner
for review before the examination and
review of such should be cited in the
examination report. A written report of
the examination should be placed in the
claims file.
4. After the development requested above
has been completed to the extent possible,
the RO should review the record to ensure
that such is adequate for appellate
review. After any indicated corrective
action has been completed, the RO should
again review the record and re-adjudicate
the veteran's claim. If the benefit
sought on appeal remains denied the
veteran and his representative should be
furnished a supplemental statement of the
case, which contains notice of all
relevant actions taken on the claim for
benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified. The veteran is advised that the
examination requested in this remand is deemed necessary to
evaluate his claim and that his failure, without good cause,
to report for scheduled examinations could result in the
denial of his claim. 38 C.F.R. § 3.655 (2000).
The veteran has the right to submit additional evidence and
argument on the matter that the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The RO is advised that where the remand orders of the Board
or the Court are not complied with, the Board errs as a
matter of law when it fails to ensure compliance, and further
remand will be mandated. Stegall v. West, 11 Vet. App. 268
(1998).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Barry F. Bohan
Member
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).